Citation Nr: 21064179 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-54 821 DATE: October 19, 2021 ISSUES Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus. Entitlement to service connection for tinnitus. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a right ankle disability. Entitlement to service connection for a right ankle disability. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) as due to military sexual trauma (MST), depressive disorder, anxiety, and obsessive-compulsive disorder. Entitlement to service connection for carpal tunnel syndrome, left upper extremity. Entitlement to service connection for carpal tunnel syndrome, right upper extremity. Entitlement to service connection for a dental disability. Entitlement to a total disability evaluation based on individual unemployability (TDIU). Entitlement to service connection for incontinence. ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for tinnitus has been received, and to that extent only, the claim is granted. Entitlement to service connection for tinnitus is granted. New and material evidence sufficient to reopen a claim for entitlement to service connection for bilateral hearing loss has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen a claim for entitlement to service connection for a right ankle disability has been received, and to that extent only, the claim is granted. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. Entitlement to service connection for incontinence has been withdrawn and is therefore dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) as due to military sexual trauma (MST), depressive disorder, anxiety, and obsessive-compulsive disorder, is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for carpal tunnel syndrome, left upper extremity is remanded. Entitlement to service connection for carpal tunnel syndrome, right upper extremity is remanded. Entitlement to service connection for a dental disability is remanded. FINDINGS OF FACT 1. A July 1997 rating decision denied a claim for service connection of tinnitus, bilateral hearing loss, and a right ankle disability. The Veteran was notified of her rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. For the tinnitus, bilateral hearing loss, and a right ankle disability, evidence received since July 1997 is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for tinnitus, bilateral hearing loss, and a right ankle disability. 3. The evidence is at least in equipoise as to whether the Veteran's tinnitus disability is related to her active service. 4. The evidence of record does not show that the Veteran's service-connected disabilities alone preclude her from obtaining or maintaining substantially gainful employment consistent with his level of education and work history on a schedular or extraschedular basis, and the Veteran is gainfully employed. 5. On April 7, 2021, during a Board hearing with the undersigned Veterans Law Judge, the Veteran withdrew her claim for service connection for incontinence. CONCLUSIONS OF LAW 1. The July 1997 rating decision is final. 38 U.S.C. §§ 7104, 7105 (1992); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). 2. New and material evidence sufficient to reopen the claims of service connection for tinnitus, bilateral hearing loss, and a right ankle disability have been received since July 1997, and the claims are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a tinnitus disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2021). 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2021).The criteria for withdrawal of entitlement to service connection for incontinence by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); § 19.55 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. With respect to the Veteran's original claim for service connection for PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). As the Veteran has several psychiatric diagnoses in her treatment records, the Board has expanded the Veteran's original claim for service connection for PTSD to a claim of service connection for an acquired psychiatric disorder, to include PTSD as due to military sexual trauma (MST), depressive disorder, anxiety, and obsessive-compulsive disorder. The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2021; a transcript of that hearing is associated with the claims file. The Veteran submitted additional evidence in support of her claim after the most recent Statement of the Case (SOC) of October 2018, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. This waiver was reiterated during the April 2021 hearing before the undersigned VLJ. See 38 C.F.R. §§ 19.37, 20.800, 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). This appeal was originally certified to the Board with two additional issues: entitlement to service connection for left lower extremity radiculopathy and right lower extremity radiculopathy. However, in a September 2019 rating decision, the RO granted entitlement to service connection for each with a 20 percent evaluation effective from September 11, 2019. As such, those issues are no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In July 1997, VA denied the original claim of entitlement for service connection for tinnitus, bilateral hearing loss, and a right ankle disability. The claims were originally denied because the evidence did not show an incident or injury in service. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, and her statements regarding the disability. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. She also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (1997); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). The Veteran sought to reopen the claim in October 2015. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, and his statements regarding her tinnitus, bilateral hearing loss, and right ankle disability. The RO denied the claim in February 2016 for the right ankle and March 2016 for the hearing disabilities. The Veteran filed a notice of disagreement (NOD) in September 2016. VA issued a statement of the case (SOC) in October 2018. The Veteran perfected an appeal to the Board in December 2018 and the appeal was certified before the Board also in December 2018. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2020). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the July 1997 rating decision. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claims Reopened The evidence of record in July 1997 consisted of service records, including personnel and medical records, and VA treatment records. The evidence of record at that time did establish diagnoses of tinnitus, bilateral hearing loss, and a right ankle disability, but it did not establish a nexus back to service. Since the July 1997 rating decision, the Veteran's file has additional VA and private medical records that have been attached to the claims file. Also, the Veteran provided testimonial evidence during her April 2021 hearing with the undersigned Veterans Law Judge. These VA medical records show continuing treatment for the Veteran's tinnitus, bilateral hearing loss, and a right ankle disability through to the present. This new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran's tinnitus, bilateral hearing loss, and right ankle disability in question, and under the low threshold standard could reasonably trigger the Secretary's duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim of service connection for tinnitus, bilateral hearing loss, and a right ankle disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for tinnitus, bilateral hearing loss, and a right ankle disability are warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). To that extent only, the claim to reopen for service connection for tinnitus, bilateral hearing loss, and a right ankle disability is granted. Service Connection for Tinnitus Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Tinnitus The Veteran contends that exposure to loud noise during active service caused her current tinnitus disability. Furthermore, the Veteran testified before the undersigned Veterans Law Judge at an April 2021 hearing as to her service regarding her exposure to loud gunfire and other hazardous noise during her four years of active service in the Marine Corps. The Veteran is competent to testify to her own experiences. Further, the United States Court of Appeals for Veterans Claims (Court) has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds the Veteran's claims to be credible and notes that her statements conform to other lay statements and VA treatment records. Thus, noise exposure and acoustic trauma during service are conceded. The Veteran has received regular audiological care at VA facilities for her hearing. Treatment notes from a March 2016 VA examination indicate a diagnosis of tinnitus by a VA audiologist. That VA treating audiologist noted the Veteran's reports that the tinnitus is constant and bilateral, and is more noticeable during quiet situations, especially at night. This audiologist noted the Veteran's statements that she had worked in retail stores and offices, and later for a parcel delivery service, and thus was not exposed to loud environments after service. The audiologist also noted that while the Veteran's hearing threshold levels were within normal limits, but that his tinnitus was longstanding and started prior to her active service, per her statements. This examiner noted the Veteran's statements that her tinnitus has increased in severity since service and affects her concentration. The examiner also noted that the Veteran had no other ear or related pathologies, and no vertigo. Those examinations noted and diagnosed the Veteran's current disability of tinnitus, among other care for the Veteran's hearing loss. Thus, the evidence establishes a current disability of tinnitus. With respect to the final element of nexus, the Veteran has credibly stated that she has experienced tinnitus persistently during and after active duty, during testimony with the undersigned VLJ and also over time to different VA audiologists. This testimony is sufficient to establish a nexus between the Veteran's current tinnitus and the in-service incurrence. This is because for certain chronic disorders, shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2021). Tinnitus caused by acoustic trauma is considered is among the chronic diseases listed under 38 C.F.R. § 3.309(a) (2021). See Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Therefore, a presumption of service connection for chronic diseases under 38 C.F.R. § 3.303(b) applies to this tinnitus claim, and the third service connection element is satisfied. The Board acknowledges the negative rating decision for service connection for tinnitus in March 2016, but also notes changes in law and regulation since then that negate the reasoning behind that decision. That March 2016 rating decision predates the current legal guidance from 38 C.F.R. §§ 3.303(b) and 3.309(a) (2021) and Fountain v. McDonald, 27 Vet. App. 258, 263 (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (stating that "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service"). The Board notes the Veteran's assertion that her tinnitus existed before active service, without being noted on service medical records as such. This fact can create an aggravation case pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, where the burden would be placed on VA to show the disorder preexisted service, and that preexisting disorder was not aggravated in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (stating that the only prerequisite for application of the presumption of soundness is that the disease not be "noted" on entry examination). If VA fails in that condition, then the burden of proof moves to one of direct service connection. Here, because the avenue of direct service connection provides satisfaction of the Veteran's tinnitus claim, the Board need not proceed with a preliminary aggravation analysis as to whether the pre-existing tinnitus increased in disability during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Resolving all reasonable doubt in favor of the Veteran, her tinnitus cannot be satisfactorily disassociated from service. Thus, giving the Veteran the benefit of the doubt, all elements required to establish service connection for tinnitus have been satisfied, and service connection is warranted. 38 C.F.R. § 3.102 (2021). TDIU It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A total disability exists where there is any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran asserted in statements associated with her October 2015 claim that she is unable to work due to service-connected disabilities, and therefore she is entitled to a total disability evaluation. Legal Standards A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). When considering a TDIU, the overriding issue is unemployability, not unemployment. The sole fact that a veteran is unemployed for non-service- connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can, in fact, find employment. See 38 C.F.R. §§ 4.1, 4.15. As noted, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran's employment history, his educational and vocational attainment, and his particular disabilities are to be considered in making a determination on unemployability. The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). "Substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73-74. As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Schedular TDIU A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Service connection has been previously established for right lower extremity radiculopathy, rated at 20 percent disabling from September 11, 2019; left and right knee strain, each rated at 10 percent disabling from February 5, 2016; and noncompensable ratings for thoracic spine muscle strain, left lower extremity radiculopathy, right finger fracture residuals, left finger tumor residuals, and right knee scars. The Veteran currently has an overall schedular eligibility of a 50 percent combined rating. Thus, the Veteran does not meet the minimum schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), due to the combined 50 percent overall and no disability at 40 percent or more as of September 11, 2019. The Board notes per the Veteran's VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that she had previously been employed by the United Parcel Service from August 2000 to September 2015, and she noted on her Form 9 appeal to the Board that she was then unemployed due to her disabilities. The Board notes from testimony provided during the April 2021 Board hearing before the undersigned VLJ that the Veteran is employed full-time again by the United Parcel Service in a full-time position. TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (2020); see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) ("[T]he central inquiry in determining whether a veteran is entitled to a TDIU rating is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."). 38 C.F.R. § 4.16(a) also states that "[m]arginal employment shall not be considered substantially gainful employment." The same regulation and paragraph continue: "[F]or purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination." See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). More recently, CAVC has determined that "[s]ubstantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Board notes the Veteran or her representative have not asserted her income is below the poverty threshold for one person. Therefore, the Veteran's argument is essentially that she is marginally employed on a facts-found basis. Id. The Veteran has not asserted any facts related to her claim that her employment with VA is marginal by any sense of the word. The ultimate responsibility for determining the effects of disabilities on the question of employability rests with the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Board finds that the evidence of record does not demonstrate that the service-connected disability of record alone renders the Veteran unemployable. The Veteran is currently employed by the United Parcel Service since 2018, and was also previously employed by the same company in the same position from August 2000 to September 2015. The Board notes the assertions by the Veteran's representative, and the effects of the Veteran's disabilities, but it does not rise to the level of total impairment. The Board also notes and acknowledges the limitations of the Veteran's other diagnosed conditions. However, those other disabilities are not service-connected, and are thus not pertinent to the Veteran's claim for a TDIU. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran's service-connected disabilities are serious and she is in receipt of benefits for those disabilities. Critically, however, the fact that the Veteran is successfully employed by United Parcel Service in a gainfully employed manner totally belies any argument that could be made that her service-connected disabilities render her unable to obtain or retain gainful employment. Under these circumstances, the Board concludes that a TDIU is not warranted. Gilbert, supra. Withdrawn Issue The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During a Board hearing with the undersigned Veterans Law Judge on April 7, 2021, with the concurrence of her representative, the Veteran testified under oath that she was withdrawing the issue of entitlement to service connection for incontinence. As a matter of law, a withdrawal of an appeal is effective when received. See 38 C.F.R. § 19.55 (2021). Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this matter. As the Board does not have jurisdiction to review this particular claim, it is therefore dismissed. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) as due to military sexual trauma (MST), depressive disorder, anxiety, and obsessive-compulsive disorder is remanded. The Veteran's claim for service connection for PTSD must be remanded for additional development because first, the Veteran did not receive proper VCAA notice respective of a PTSD claim involving military sexual assault. Second, there are multiple and different mental health diagnoses from different VA examiners at different times that are not reconciled or discussed in any one comprehensive opinion. Given that the Veteran's original PTSD claim has been expanded per Clemons, supra, the other diagnosed mental health disorders must be discussed and an opinion for service connection provided. Third, none of the VA examiners addressed the lay and buddy statements in the claims file regarding the Veteran's mental health conditions, especially with regard to the Veteran's claim of military sexual trauma and personal assault. The Veteran testified under oath before the undersigned Veterans Law Judge in April 2021 that she had experienced two different sexual assaults during her military service, one in 1993 and one in 1994. The Veteran submitted a claim for PTSD, to include PTSD as due to military sexual assault, in January 2014. VA provided generic VCAA notice to the Veteran in a letter dated June 30, 2014, but not the specific notice required. The Veteran's claim was denied in a February 2015 rating decision, where the RO stated the evidence of record does not provide credible evidence that the claimed stressor occurred. The RO adjudicator did note the Veteran's records "show some indicators that could be seen as supporting evidence but those indicators did not occur during the time frame that you reported the stressors took place." The Federal Circuit noted, however, that if PTSD is based on an in-service personal assault, as this claim is, medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated, and that this evidence need not be contemporaneous with service. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (concluding that evidence from 2001 would be used to corroborate a claim of an assault that occurred in 1984). Furthermore, the Board notes the United States Court of Appeals for Veterans Claims ("Court") has held there is a "heightened burden of notification on VA in claims for service connection for PTSD based on in-service personal assault." Gallegos v. Peake, 22 Vet. App. 329, 335 (2008). First, the RO must inform the claimant that he or she may submit alternative forms of evidence, that is, evidence other than service records, to corroborate the account of an in-service assault, and suggest potential sources for such evidence. Id.; see also 38 C.F.R. § 3.304(f)(5) (2010). The claimant should also be notified that, alternatively, evidence of behavioral changes following the alleged in-service assault may constitute "credible supporting evidence of the stressor." Id. Second, VA must assist the claimant in the submission of alternative sources of evidence, by providing additional time for the claimant to submit such evidence after receipt of the personal-assault letter and, where appropriate, by obtaining evidence on the claimant's behalf. Id. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). Up to present, no VA examiner has discussed the lay and buddy statements in the claims file regarding the Veteran's mental health claims and diagnoses. VA provided a PTSD examination for the Veteran in February 2016, and the examiner declined to diagnose PTSD, but did diagnose depressive disorder and a personality disorder. Recent VA treatment notes indicate ongoing treatment for mental health disorders, to include a suicide attempt in late April 2021 and noted diagnoses of depression, anxiety, and an unspecified trauma disorder. Remand is thus required for a comprehensive VA opinion regarding the Veteran's mental health conditions and possible service connection, to include adherence to regulations and case law regarding claims of PTSD with military sexual trauma and personal assault. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran filed a claim for service connection for bilateral hearing loss immediately upon leaving service, but was denied in a July 1997 rating decision. The Veteran filed to reopen her claim for the bilateral hearing loss, but was denied in an April 2017 rating decision. In the March 2016 VA medical examination that was relied upon for the negative rating decision, that VA audiologist noted the study done by the Institute of Medicine (IOM) entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus (September 22, 2005) (hereinafter IOM Report) saying that with current knowledge of cochlear physiology that there was not sufficient scientific basis for the existence of delayed onset hearing loss, without citation to a particular chapter, finding, or page. However, the Board notes existing case law that a medical text must do more than just provide speculative generic statements about a disability or the relationship between the disability and purported causal factors. See Wallin v. West, 11 Vet. App. 509, 514 (1998). Furthermore, an excerpt from a generic medical text that does not apply medical principles regarding causation or etiology to the facts of the individual Veteran's case generally won't provide sufficient evidence, standing alone, to serve as the basis for an award of service connection. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board notes from the IOM report itself that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." IOM Report, supra at 151-152, available at www.nationalacademies.org/hmd/Reports/2005/Noise-and-Military-Service-Implications-for-Hearing-Loss-and-Tinnitus.aspx. (Emphasis added.) The Board finds here that the VA examiner's reliance on general statements from an extensive medical study to the particular facts of this Veteran's case is overly broad and not specific enough to provide any reasonable support of the VA examiner's opinion. To be adequate, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Remand is thus necessary to obtain a fresh VA examination for the Veteran's hearing loss and an opinion for service connection. 3. Entitlement to service connection for carpal tunnel syndrome, left upper extremity, is remanded. 4. Entitlement to service connection for carpal tunnel syndrome, right upper extremity, is remanded. 5. Entitlement to service connection for a dental disability is remanded. 6. Entitlement to service connection for a right ankle disability is remanded. The Veteran filed to reopen her previously denied claim for service connection for a right ankle condition in October 2015, but was denied in a February 2016 rating decision. The Veteran also filed claims for service connection for carpal tunnel syndrome in each upper extremity, and for a dental disability and was denied in that February 2016 rating decision. For all four disabilities, the Veteran has not received a VA examination for her claims. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the Veteran has been diagnosed and treated for a dental disability and a right ankle disability in service, and later for carpal tunnel syndrome in each upper extremity by multiple physicians, but she has never received a compensation and pension examination with an opinion for possible service connection for any of those four disabilities. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is required to obtain the requisite VA examination and opinion for service connection for the claimed disabilities. The matters are REMANDED for the following action: 1. The RO is to provide the Veteran with proper VCAA notice and assistance specific to her claim for an acquired psychiatric disorder, to include PTSD, to include as due to military sexual trauma or personal assault, pursuant to 38 C.F.R. § 3.304(f)(5) and Gallegos v. Peake, 22 Vet. App. 329, 335 (2008), to include: (a.) that the Veteran may submit alternative forms of evidence, that is, evidence other than service records, to corroborate the account of an in-service assault, and suggest potential sources for such evidence; (b.) the Veteran should also be notified that, alternatively, evidence of behavioral changes following the alleged in-service assault may constitute "credible supporting evidence of the stressor." (c.) VA must assist the claimant in the submission of alternative sources of evidence, by providing additional time for the claimant to submit such evidence after receipt of the personal-assault letter and, where appropriate, by obtaining evidence on the claimant's behalf. 2. For the remaining disabilities on remand, make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 3. After the above is complete, schedule the Veteran for a VA examination by a VA psychologist or psychiatrist to determine the nature and etiology of the Veteran's acquired psychiatric disorder(s), to include major depressive disorder, anxiety, and any other diagnosed mental health disorder. The claims file must be made available to and reviewed by the examiner. It should be specifically noted in the claims file service treatment records that upon separation examination, the Veteran indicated the presence of "frequent trouble sleeping" and "depression or excessive worry" [underlined in the original]. After reviewing the claims file and examining the Veteran, the examiner should answer the following questions: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed acquired psychiatric disorder(s) had its onset in service or is otherwise related any to any in-service disease, event, or injury. 4. Schedule the Veteran for an audiological examination with a qualified examiner to determine the nature and etiology of her bilateral hearing loss disability. It is imperative that the entire claims file be made available to the examiner for review in connection with the examination. The examiner should note that the claims file has been reviewed. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. For each ear, the examiner is asked to specifically record the decibel loss at the 1000, 2000, 3000, and 4000 Hz frequencies, and should provide results of a Maryland CNC word recognition test. The examiner should also address any functional impairment resulting from the Veteran's hearing loss and its effects on her ordinary activities. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed bilateral hearing loss disability had its onset in service or is otherwise related any to any in-service disease, event, or injury. The VA examiner, in the formation of their opinion regarding possible service connection of the right ear, in the event medical literature or studies are used as support, should consider that a medical text must do more than just provide speculative generic statements about a disability or the relationship between the disability and purported causal factors. Wallin v. West, 11 Vet. App. 509, 514 (1998). 5. Schedule the Veteran for the appropriate VA examination by a VA medical professional with the necessary expertise to determine the nature and etiology of the dental disability, the right ankle disability, and the carpal tunnel syndrome disabilities, to include all pertinent orthopedic and neurological manifestations. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed dental disability, the right ankle disability, and the carpal tunnel syndrome disabilities had their onset in service or is otherwise related any to any in-service disease, event, or injury. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. When considering the evaluations, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to her service and her reports of her activities and symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Attention is invited to the Veteran's reports and statements of chronic pain in her right ankle and upper extremity as due to the carpal tunnel syndrom. The Board takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 6. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.